Hyderabad: Fathers who lose child custody while in the midst of divorce proceedings have to wage long tough legal battles to win back custody and get equal visitation rights, say lawyers in the city. In almost 90 per cent of child custody cases, judgments seeing women as the first rightful custodian. When initial custody rights are meted out, the court checks which parent can ensure the child’s welfare. “Sympathy is extended to the women, and naturally they may be seen as the more suitable custodian of the child,” says advocate B. Ramesh. According to the Hindu Minority and Guardianship Act of 1956, legally the first preference for entrusting the minor children up to the age of 8, or puberty, rests with the mother. “If the mother has criminal records, or has illegal relationships, only then would the custody pass on to the father,” he said.
Fathers are then left with visitation rights or take the legal route to get back the child’s custody. But such a fight may become futile as technicalities could favour women. Advocate Anita Jain said, “In some cases, the woman would file criminal charges from Sections 498 to 354 just to win the custody rights and ensure at least visitation rights as well. The child becomes an issue of insecurity and the mother may go to any extent to prevent the child from meeting the father. It’s the children who lose emotionally and in terms of parental care in these circumstances.”
She said when both parents can equally provide for the child, the woman may use the technicalities of criminal charges and deprive the kid of quality time with the father. Can’t fathers be good parents? Many say it’s gender bias to think they can’t. Bengaluru based Children’s Rights Initiative for Shared Parenting founder Kumar Jahgidar said it was the inherent gender bias that failed to see fathers as good parents.
“If the mother is seen as a multi-tasker who juggles adeptly between her domestic and professional life, why aren’t fathers seen that way?” Mr Jahgidar quoted his experience, where he got into a legal battle with his wife. He argued that when custody was denied to either of the parents, they were reduced to a mere visitor, creating parental alienation for the child. “We must set up a shared parenting model up to the age of eight years where the child gets to be with both sets of parents and not with just one, where they may develop a dislike for the estranged parent," he said.
A report by the Law Commission in 2015 suggested reforms in two laws: the Hindu Minority and Guardianship Act, 1956, and the Guardians and Wards Act, 1890 that govern cases of child custody. It observed that to put them on par with times the welfare of the child must be given the priority by giving equal visitation rights. It notes that “welfare of the child” was not merely to be reduced to monetary and physical comfort, but had to be seen in its widest sense of even affection which the report says comes with int-eraction with both parents. It accepts that the judicial fraternity lack consensus on what exactly constitutes the welfare of the child, leaving parents guessing as to how the courts will make custody decisions.
